Remember the 2000 election between Bush and Gore and how the controversy about the “hanging chad” and the Supreme Court decision “gave” the victory to Bush? Well, the voting machines are much improved now partly due to a patent for a better electronic voting machine that was a filed application in 2000, when the Bush v. Gore decision was being made, and on the day before the 2012 election, a major patent case decision came down.

The IP rights over this patent won’t stop the election as yesterday the Federal Circuit affirmed a Florida federal court’s ruling that two voting machine manufacturers involved in the case of Voter Verified v. Premier Election Solutions and Diebold didn’t infringe a Voter Verified Inc. patent covering a method of verifying ballot accuracy. A three-judge panel agreed with the lower court that voting machines sold by Premier Election Solutions Inc. and Election Systems & Software Inc. don’t infringe the patent. The decision, in effect, ends the four-year old litigation, as it means that ninety three of the asserted patent claims are invalid and the remaining claim is not infringed by the automated voting systems sold by Premier Election Solutions and Diebold. Voter Verified alleged infringement of all claims, 1–94.

The Voter Verified patent, which issued in 2008, discloses and claims automated systems and methods for voting in an election, featuring a self-verification procedure by which “machine and human error may be detected and corrected before the ballot is submitted by the voter for tabulation.” Briefly, the voter enters a vote into an electronic voting station, which temporarily records the voter’s input in digital storage and generates a corresponding printed ballot. That printed ballot is then checked for accuracy, either by presentation to the voter for visual inspection or by a computerized scanning mechanism capable of comparing the face of the printed ballot with the vote data represented in the station’s temporary storage. In either case, only ballots deemed consistent with the voter’s intended or recorded input are accepted for final tabulation.

Patentees are generally only entitled to infringement damages if an infringer has notice of the infringement. The patent marking statute permits patentees to provide notice to the public by marking a product or product package that is covered by a patent with the patent number. This is why it is strongly recommended that patent owners mark their patented products or product packages with this number.

Patent applicants should also mark products or product packages with the phrase “patent pending.” The phrase does not have any real legal meaning under US patent law, as it does not indicate that the product is covered by a patent or that someone who copies the product is guilty of patent infringement, but the purpose is to inform the public that the product is the subject of a patent application that has been filed and is pending in the Patent Office. Even filing a provisional patent application gives the applicant the right to mark the product with the phrase.

Although in general a patent application cannot be infringed, the public is informed that a patent may issue in the future that covers that product. Even if a patent does not issue for the product, it is believed that the patent applicant may deter some parties from copying the product while a patent application is pending, thus providing the applicant with a competitive advantage.

Patent marking is also used as a marketing technique. Many consumers believe that a patented product is a cutting edge product–it must be better or an improvement over previous products. “Patent pending” may provide this marketing advantage as well. Investors also believe that if a patent is pending that the company, particularly small start-ups, will someday own an asset that they are willing to invest in. If you have a start-up that is looking for investors, it may be wise to at least file a provisional patent application that will mark off your territory!

With the election just one day away, the Supreme Court decisions seem even more important than ever. The President who is elected tomorrow will most likely appoint two, possibly three Supreme Court Justices. This may shape the Court for the next generation of Americans. Justices Antonin Scalia and Anthony Kennedy, both of whom were appointed by Reagan, and Justice Ruth Bader Ginsburg, appointed by Clinton, will all turn 80 before 2016. Ginsberg is 79 while Scalia and Kennedy are 76. Since many of the most important cases brought before the Court have been decided by a 5-4 majority, future Justices will likely help determine the outcome of cases dealing with national security, racial preferences, same-sex marriage, abortion, privacy laws, and even patent law. Yes, even patent law. The Supreme Court is scheduled to decide four intellectual property cases this term:

Gunn v. Minton (whether legal malpractice claims arising out of representation in a patent dispute should be heard by the Federal Circuit)

In addition to these, there are several more pending petitions for certiorari that the Court could hear. The most notable of these is Association for Molecular Pathology (AMP) v. Myriad Genetics (patentability of isolated but naturally occurring human DNA). I recently blogged on the importance of this case.

A second important pending petition is Retractable Technologies, Inc. v. Becton, Dickinson and Co. (de novo review of claim construction). More than a dozen other petitions have been filed or are likely within the next two months.

Voting in this election means more to the future than we can possibly imagine. It is important for everyone to exercise their right to vote.